Ragan Charles v SMP Network Pty Ltd
[2021] FWC 6599
•30 DECEMBER 2021
| [2021] FWC 6599 |
| FAIR WORK COMMISSION |
DECISION |
Fair Work Act 2009
s.394—Unfair dismissal
Ragan Charles
v
SMP Network Pty Ltd
(U2021/10582)
COMMISSIONER HAMPTON | ADELAIDE, 30 DECEMBER 2021 |
Application for an unfair dismissal remedy – application lodged outside of initial period allowed by the Act – extension of time sought – whether exceptional circumstances – considerations applied – absence of reasonable explanation for much of the delay – merit, prejudice and other factors weighed – on balance, not satisfied that exceptional circumstances existed warranting an extension of time – no extension permitted – unfair dismissal application not validly made and dismissed.
1. What this decision is about
[1] This decision concerns an application by Ms Ragan Charles (Applicant) for an unfair dismissal remedy pursuant to s.394 of the Fair Work Act 2009 (Act). Ms Charles is seeking compensation.
[2] The application has been advanced on the basis that termination of Ms Charles’ employment with SMP Network Pty Ltd (Respondent or SMP) was effective on 27 September 2021. Ultimately, I have found that to be appropriate.
[3] Section 394(2) of the Act states that an application for an unfair dismissal remedy must be made ‘within 21 days after the dismissal took effect’, or within such further period as the Commission allows pursuant to s.394(3). Adopting 27 September 2021 as the reference date for the dismissal, the period of 21 days in this case ended at midnight on 19 October 2021.1 The application was therefore filed 31 days after the 21-day limit. The Applicant requests the Commission to grant a further period for the application to be made under s.394(3) and the Respondent opposes this request. The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are exceptional circumstances.2
[4] The Commission has conducted an MS Teams Video Hearing to enable the extension of time matter to be determined. Both parties sought and were granted permission to be represented by a lawyer having regard to s.596 of the Act.
[5] Ms Charles provided a witness statement3 on her own behalf. Ms Charles also relied upon a statement of support from a Clinical Psychologist. 4 A statement5 of Ms Susan Nolan, Chief Executive Officer (CEO) of SMP was also provided by the Respondent and Ms Charles and Ms Nolan ultimately gave sworn evidence and were subject to cross-examination.
[6] Ms Charles’ grounds for seeking the extension of time are as follows:
• It was not clear to her if and when her employment was terminated.
• She was not paid for any notice period, or accrued entitlements.
• She had been experiencing a difficult time within her personal life wherein her main focus had been the care and welfare of her four children.
• It was not until she conferred with her lawyer (Mr White) on 8 November 2021 that she received any proper advice on her rights.
• Following receipt of the advice from Mr White on 8 November2021 she proceeded as expeditiously as possible to lodge the unfair dismissal application.
[7] Ms Charles also submitted that these represented exceptional circumstances within the meaning of the Act. Further, combined with the absence of any real prejudice for the Respondent, and the merits of the unfair dismissal application itself, Ms Charles contended that the Commission can and should exercise the discretion to extend the time for the lodgement of this application.
[8] Ms Charles also contends that the understanding about the termination date was formed in retrospect and was unclear at the time. In addition, she had sought to ascertain her rights and was only aware following advice from Mr White on 8 November 2021 that an extension of time application could be pursued. Further, Ms Charles contends that her personal circumstances were such that it was difficult for her to focus upon the termination and employment issues, and this provided an appropriate explanation for the delay when considered in the whole context of events.
[9] Ms Charles also submits that SMP does not come to the matter with “clean hands” and that this was relevant in the context of the Respondent taking a strict position on the extension of time matter.
[10] Finally, Ms Charles submits that the requirements of s.394(3) of the Act are not to be taken lightly, but the bar is not excessively high insofar as an employee should not be prejudiced or lose the opportunity to bring an application where it is a “relatively short period of time”, the “status quo has been preserved” and no undue prejudice will be suffered by the Respondent. 6
[11] The Respondent opposes the extension of time request and contends, in effect, that Ms Charles has failed to establish exceptional circumstances. Further it contends that the length of the delay, the absence of a reasonable explanation for that delay, and the absence of merit in the substantive application all support its proposition that the unfair dismissal application itself should be dismissed.
[12] SMP also contends that:
• The evidence reveals that Ms Charles was aware of her dismissal on or shortly after 27 September 2021 and that her actions after that time confirm that understanding;
• Ms Charles sat on her hands, had a number of opportunities to progress the claim and chose not to do so;
• There would be prejudice to the Respondent such as the usual costs and time prejudice of having to defend the application;
• Ignorance of the 21 day time limit does not provide an explanation; and
• This “is a very late application, prompted by seeing Mr White” 7 and does not involve exceptional circumstances.
[13] As will become clear, having assessed all of the circumstances of this matter and the relevant statutory considerations I have determined that in the absence of exceptional circumstances an extension of time is not to be granted for the lodgement of this application. The considerations leading to, and consequences of, that finding are outlined below.
2. The broad context and the immediate sequence of events associated with the timing of the dismissal and the application
[14] Ms Charles, and to some extent, Ms Nolan provided evidence about certain personal circumstances that are relied upon in terms of the explanation for the delay and some evidence that was provided respectively. As advised to the parties during the proceedings, I have had regard to those circumstances to the extent relevant to this matter. I have, in making my findings, only referenced these circumstances in general terms as a matter of respect for the privacy of the parties.
[15] It is presently sufficient to state that certain private circumstances applying to Ms Charles at the time of and after her dismissal are relevant as part of the explanation for the delay. This included uncertainty about her family home in the context of a separation, and a period where she was undergoing medical treatment.
[16] I found Ms Charles initial written statement about the circumstances of her dismissal superficial and unconvincing in some respects. However, her oral evidence as to the broader context was much more complete and her partial concession about her understanding of the impact of the events of 27 September 2021 was much more convincing. That is, Ms Charles had to press for clarification of her employment status, but when a written “reference” was provided by Ms Nolan the conclusion of the relationship was effectively known. 8 In any event, for reasons that I will come to, the conduct of both parties on and after 27 September 2021 objectively supports the notion that the termination was understood at or shortly after that point.
[17] Subject to the comments below, I found the evidence of Ms Nolan to be generally reliable. I will also return to one specific aspect of that evidence shortly.
[18] I found both witnesses in giving their oral evidence were defensive and had a tendency to want to advocate their cases. Whilst I accept that in each case their individual personal (non-work related circumstances) may have had an impact on their approach to the evidence, this tendency has led me to treat aspects of the evidence with caution.
[19] The statement from the Applicant’s treating Psychologist provided some support for the general personal circumstances relied upon by Ms Charles as part of her explanation. As correctly conceded by Mr White for the Applicant, this statement was not a medico-legal report but provided some confirmation of the Applicant’s personal difficulties. I consider that the statement cannot be relied upon as direct evidence of Ms Charles’ capacities at various times. Rather, it was a statement of support about the personal issues being dealt with by Ms Charles, which are broadly recognised by the Respondent, and that provide some of the context in which Ms Charles responded to an awareness that she had been dismissed. When considered in the context of the direct evidence, this supports the notion that Ms Charles understandably had other priorities but was not unable to pursue this application at any point after the dismissal including during the period of the delay.
[20] There was some evidence led about Ms Charles’ earlier employment in a small retail business associated with Ms Nolan. I do not consider that this aspect is relevant to the considerations provided by s.394(3) of the Act as applied to this case or the extension of time matter more generally. Further, the limited evidence that is before the Commission does not enable me to find or infer improper conduct associated with how wages were paid as part of that arrangement as now alluded to on behalf of the Applicant.
[21] There was also some evidence about the non or partial payment of superannuation contributions by the Respondent to Ms Charles. The evidence was that this was now recognised by SMP and being addressed in conjunction with the Australian Taxation Office. I do not condone what appears to be late payment of some superannuation and this does not reflect well upon SMP. However, this aspect is also not directly relevant to the considerations established by s.394(3) of the Act as applied to the present matter.
[22] During her evidence, Ms Nolan indicated that as well as the common documentation surrounding the events of 27 September 2021, a specific letter of dismissal 9 was provided to Ms Charles on or around that date. This was not attached to her written statement and was not put to Ms Charles during cross-examination. Whilst I do not consider that Ms Nolan was seeking to mislead the Commission about this aspect, I have determined to place no weight upon the document. In particular, as the circumstances in which it was said to have been provided to Ms Charles were not put to the Applicant and no request was made to have the Applicant recalled to do that, I do not consider that it is appropriate to permit the Respondent to rely upon that communication.
[23] I make the following findings based upon the evidence before the Commission.
[24] Ms Charles was engaged as an Assistant Compliance Manger with SMP, which involved educating and training students to become carers and other roles in the aged care industry. This training involved teaching students in groups, but also involved some individual one on one training when the students were doing their placements.
[25] Ms Charles was, and is, a Registered Nurse and those qualifications were directly relevant to the provision of training and other services for SMP.
[26] I find that Ms Charles was engaged on a casual basis with SMP and that her pattern of work and other arrangements were consistent with that form of relationship. It is also the case that Ms Nolan and Ms Charles had a previous, much more informal, working relationship and that Ms Nolan was generally supportive of the Applicant in dealing with her personal circumstances.
[27] The extent of hours varied during the Applicant’s employment with SMP, and this was influenced to some degree by the work requirements and the personal circumstances of Ms Charles that meant that she was unable to work for certain periods. Ms Charles did at times work significant hours when required. In particular, during 2020, with the initial impact of the Covid-19 Pandemic restrictions, Ms Charles performed extensive hours for SMP for a period. Ms Charles did not perform significant work for the Respondent between 29 July 2021 and the events immediately leading to the dismissal on 27 September 2021. That work was limited to some minor activity in completing student placement notes in early September 2021 and assisting her then partner in some unrelated building work for Ms Nolan. It is not clear whether this latter work was part of the employment contract with the Respondent, however the evidence, so far as it goes, indicates that some payments were made to Ms Charles by Ms Nolan or SMP.
[28] SMP provided Ms Charles with access to a mobile phone and home internet. Further access was provided to a SMP supplied motor vehicle from time to time to assist with travel either to the workplace and/or to undertake the site visits. I find that the motor vehicle was also withdrawn from time to time but also provided at other times even when Ms Charles was not undertaking any working hours for a period.
[29] At the time of the dismissal, Ms Charles was apparently purchasing the mobile phone and had made some private payments in that regard.
[30] On 24 September 2021, Ms Charles and Ms Nolan exchanged text messages about earlier having the (in)correct contact numbers for some students that the Applicant required in order to undertake some placement visits. Ms Charles also indicated, in effect that she could now not undertake the visits due to a combination of personal circumstances. Although the full detail is not presently relevant, that exchange ended in Ms Nolan taking exception to what she stated was Ms Charles’ “attitude” to her as the CEO in respect of the information she had supplied and then communicated that:
“Probably better if you don’t want to work, drop the car and the Grange key on the weekend”
[31] And shortly thereafter Ms Nolan advised Ms Charles that:
“I’ll leave the gate open at 10.00am Saturday morning – leave the Grange key on the front seat”
[32] The vehicle was returned on Saturday 25 September 2021 as directed.
[33] I accept that the status of the employment relationship was unclear at that point. The requirement to return the vehicle was consistent with the notion that Ms Charles would not be working for the Respondent. However, as the vehicle has been returned on earlier occasions and the relationship was a casual one, the expression “if you don’t want to work” and the requirement to return the items was not a clear statement that the employment had ended at that point. The fact that a dismissal had not yet occurred is a common position between the parties.
[34] On Saturday 25 September 2021 there were some additional exchanges between Ms Charles and Ms Nolan with Ms Nolan seeking to confirm arrangements for the return of the Grange property keys. As part of that exchange, Ms Charles indicated:
“Sorry I left my phone in Vodaphone shop while sorting out (another person’s) phone I was not ignoring you. I thought Brad had Grange keys but have since found them. I thought that I was paying the phone off as I have already made payments at the rate of $188 per fortnight so if you want me to send back the phone and internet then I will be expecting to be reimbursed for the payments made.” 10
[35] Over that weekend and early on Monday 27 September 2021, there were further text exchanges between Ms Charles and Ms Nolan about how and when the Grange property keys and the phone would be returned to the Respondent.
[36] Ms Charles did seek some clarification about whether she was still employed, and the following text exchanges occurred between Ms Charles and Ms Nolan on Monday 27 September 2021 in the context of the earlier exchange about who may have been responsible for some (much earlier) incorrect information about trainee placements and the return of the phone. Ms Charles repeated Ms Nolan’s text message of Friday 24 September 2021 which included the statement “probably better if you don’t want to work, drop the car and the Grange key on the weekend” and then sought the clarification in the following terms 11:
Mon, 27 Sep, 12:25 | |
Ms Charles: | What do you mean by this message??? Do I not have a job? Did u fire me? Could you please clarify it |
Ms Nolan: | Well last time it was you who sent me the incorrect student contact details and Monique always has the correct details on the placement… |
… … | |
Ms Charles: | Could you please clarify my employment. Am I still employed or not?? Could you please provide me with a letter regarding my employment status via email and also by post to (address omitted) By the end of business hours today. |
Ms Nolan: | When you finish your RN refresher course and when you complete your TAE, and your life settles down we will review then. I will type this and post so you can take to Centrelink. I will add that due to COVID are unable to keep you employed. What’s your email ? |
Ms Charles: | Well thankyou for the variety of work that SMP provided me and I was extremely flexible in all tasks and job descriptions I maintained through my employment from training students in the quick 4 week certificate in classroom to training the old and the new 1st aid certificate, Manual Handling training, office manager, placement facilitator, placement visits, education liaison officer, cleaner, student placement meetings with students to book all placements, phone calls, emails, dealing with angry and disgruntled students as a mediator, COVD representative. Thought this would be handy to have a bit of background could you please add this or similar to the email and letter you are sending me for Centrelink to assist me in my applications for employment in the meantime |
Ms Nolan: | Thank you I’ve sent email Ragan, you can ask for a reference from me direct also if you need |
Ms Charles: | Thanks I appreciate it. |
[37] On Monday 27 September 2021, Ms Charles received the promised Centrelink reference 12 from Ms Nolan in the following terms:
“… …
Due to COVID we are unable to maintain Ragan’s employment with SMP Network p/l. Ragan was flexible in all tasks given to her.
To her credit she travelled a long distance to maintain her employment in Adelaide. Training students in class room, provide First Aid, Manual Handling training while doing her TAE. Ragan also helped with compliance around Covid. Ragan also managed placement bookings and was a placement facilitator.
Ragan was also a COVID representative for SMP
I wish her well in the future
Kind regards
Susan Nolan
CEO”
[38] The evidence reveals that Ms Charles sought the Centrelink reference as confirmation of the status of her employment and to assist her to obtain alternative employment. 13
[39] Between 1 and 15 October 2021 there were further text exchanges including about the provision of payslips and requests for confirmation of superannuation payments as sought by Ms Charles and Ms Nolan reminding Ms Charles that she “can’t use the work phone anymore” and that she was now keeping the “previous employers work phone and therefore I can’t give you a favourable reference ….”, in effect unless it was returned that day (15 October 2021). 14 It is evident that these exchanges were taking place in the context of the conclusion of the Applicant’s employment with SMP.
[40] The evidence reveals that Ms Charles did not seek further clarification of her employment status with Ms Nolan after 27 September 2021 and did not enquire as to any shifts or work requirements after that time. Despite the subsequent direct exchanges about superannuation and seeking time and wage information, Ms Charles did not advise Ms Nolan at any time that her dismissal was being contested.
[41] In either later September or early October 2021, Ms Charles attempted to contact the Fair Work Ombudsman (FWO) about her former employment, including as to superannuation and other entitlements. When she could not conveniently get through on the FWO enquiries line, Ms Charles took no further action in relation to her dismissal until late October 2021.
[42] On 26 October 2021, Ms Charles spoke to someone at the FWO about her circumstances and was advised about the capacity to contest the dismissal and the requirement that an application be made within 21 days. The FWO also provided the Applicant with a number of (internet page) links to obtain further information.
[43] On 8 November 2021, Ms Charles met with Mr White of O'Loughlins Lawyers for the purposes of getting advice on her legal position on some unrelated issues, and what information she could obtain in respect of the loan and the mortgage payments associated with a property. It was only during the course of that conference when Mr White questioned Ms Charles about her employment that she became aware that an extension of time could be sought against the Respondent for unfair dismissal.
[44] At the meeting on 8 November 2021, Ms Charles instructed Mr White to proceed with the unfair dismissal application, which was filed by Mr White on the Applicant’s behalf on 19 November 2021. The delay between these 2 dates arose from the requirement that Ms Charles provide relevant documents. The evidence is that Mr White filed the application promptly upon obtaining the required information from Ms Charles.
[45] I find that Ms Charles’ personal circumstances have had some impact upon the events as they have unfolded. In particular, Ms Charles quite understandably had other priorities. However, there is no evidence to support the notion that she was unable to take steps to ascertain her rights, make an application or provide instructions as a result of those circumstances. I will return to the explanation for the delay shortly.
3. Should an extension of time be granted?
[46] The Act allows the Commission to extend the period within which an unfair dismissal application must be made only if it is satisfied that there are ‘exceptional circumstances’. Briefly stated, exceptional circumstances are circumstances that are out of the ordinary course, unusual, special or uncommon but the circumstances themselves do not need to be unique nor unprecedented, nor even very rare. 15 Exceptional circumstances may include a single exceptional matter, a combination of exceptional factors, or a combination of ordinary factors which, although individually are of no particular significance, when taken together can be considered exceptional.16
[47] The requirement that there be exceptional circumstances before time can be extended under s.394(3) is a high hurdle 17 and contrasts with the broad discretion conferred on the Commission under s.185(3) to extend the 14 day period within which an enterprise agreement must be lodged, which is exercisable simply if in all the circumstances the Commission considers that it is ‘fair’ to do so.
[48] Section 394(3) requires that, in considering whether there are exceptional circumstances so as to grant an extension of time, the Commission must take into account the following:
(a) the reason for the delay;
(b) whether the person first became aware of the dismissal after it had taken effect;
(c) any action taken by the person to dispute the dismissal;
(d) prejudice to the employer (including prejudice caused by the delay);
(e) the merits of the application; and
(f) fairness as between the person and other persons in a similar position.
[49] The requirement that these matters be taken into account means that each matter must be considered and given appropriate weight in assessing whether there are exceptional circumstances. That is, the ultimate conclusion as to the existence of exceptional circumstances will turn on a consideration of all of the relevant matters (including the reason for delay) and the assignment of appropriate weight to each. 18 I now consider these matters in the context of the application.
Reason for the delay
[50] The Act does not specify what reason for delay might tell in favour of granting an extension; however, decisions of the Commission have referred to an acceptable or reasonable explanation. The absence of any explanation for any part of the delay will usually weigh against an applicant in the assessment of whether there are exceptional circumstances, and a credible explanation for the entirety of the delay will usually weigh in the Applicant’s favour; however all of the circumstances must be considered on their own merits. 19
[51] I have set out the chronology of events earlier in this decision, including the context and consequences of certain exchanges between the parties.
[52] Ms Charles personal circumstances provide some context for the delay and some explanation. However, when all of the circumstances are considered, Ms Charles did not actively seek to ascertain her rights, did not proactively follow up on information apparently provided by the FWO, and did not then seek any further advice until some weeks later. That advice was an indirect result of seeking legal advice on another matter.
[53] To the extent that Ms Charles relies upon advice that she was already out of time when advised by the FWO, the above observations about the absence of any real attempts to ascertain or advance her rights at that point are also apposite in the regard.
[54] Ms Charles had other priorities and I make allowance for this in assessing the above. I also make some allowance for the fact that Ms Charles was unwell for a period during the delay. The specific evidence 20 relates to a later time in the period of the delay but I understand that Ms Charles may well have had ongoing issues given the broader evidence about the medical support provided to her at times. However, there is no direct evidence to support the notion that this prevented Ms Charles from seeking advice or contesting the dismissal.
[55] When all of the circumstances are assessed, I do not consider that there is an acceptable or reasonable explanation for much of the delay in lodging the unfair dismissal application.
[56] This consideration weighs against a finding of exceptional circumstances.
Whether the person first became aware of the dismissal after it had taken effect
[57] I have found that the dismissal took place on 27 September 2021 as this is accepted by both parties. There was uncertainty about the status of the relationship following the events of 24 September 2021, however at the point that Ms Charles was seeking the Centrelink reference, was taking actions consistent with the conclusion of the relationship such as seeking that Ms Nolan act as a referee and discussing the circumstances in which the phone would be returned, it was objectively clear that Ms Charles was aware of the dismissal. The terms of the Centrelink “reference” also make it clear that the employment had concluded. This was on 27 September 2021 and I do not accept that part of the Applicant’s case that relies upon the alleged uncertainty about the timing of the dismissal. The absence of any payment upon termination is also explained by the parties’ understanding of the status of the relationship, a matter now, in effect, accepted by the Applicant. 21
[58] This consideration weighs against a finding of exceptional circumstances.
Action taken to dispute the dismissal
[59] Ms Charles took no action to dispute the dismissal directly with SMP. More relevantly, Ms Charles did not seek advice for many weeks after the dismissal and did not actively seek to contest the dismissal until 8 November 2021. There was further delay in actually lodging the application.
[60] This consideration tells against a finding of exceptional circumstances.
Prejudice to the employer
[61] SMP did not cite any particular prejudice associated with the delay in lodging the unfair dismissal application, beyond those associated with contesting the application itself. The mere absence of specific prejudice is not, by itself, a sufficient basis to grant of an extension of time. However, to the extent that the absence of prejudice supports an extension in this case, I attribute it at least some weight in the consideration of whether there are exceptional circumstances. 22
Merits of the application
[62] The merits of an application are relevant; however, the assessment of the merits for present purposes is limited to, in effect, a preliminary consideration. 23
[63] In the circumstances, the parties have not provided detailed evidence or submissions about the merits of the unfair dismissal application itself. On face value, the dismissal took place without any due process and in response to Ms Charles’ inability to do placements work due to her personal circumstances. 24 On the other hand, this was a casual employment relationship and SMP will contend that Ms Charles could not undertake the required training work until she had completed a mandated Registered Nurse refresher training course and obtained an additional training qualification. SMP have also foreshadowed its position that Ms Charles was not regularly and systematically employed.25 I can make no findings about these matters and whilst there appear to be significant hurdles, it cannot be said at this point that the unfair dismissal application is without merit for present purposes.26
[64] In the circumstances, I consider that the merits factor in this case weighs mutually between the parties as a consideration of exceptional circumstances.
Fairness as between the person and other persons in a similar position
[65] Neither party brought to my attention any relevant matter concerning this consideration and I am unaware of any relevant factor. 27 I therefore consider that this weighs mutually between the parties as a consideration of exceptional circumstances.
4. Conclusions
[66] Having considered all of the circumstances of this matter and the considerations provided by s.394(3) of the Act, I am not satisfied that there are exceptional circumstances. Accordingly, there is no basis to provide an extension of time for the lodgement of this application.
[67] As the unfair dismissal application was lodged beyond the initial period provided by s.394(2(a), and an extension of time has not been granted, there is not a valid application before the Commission.
[68] On that basis it is appropriate to dismiss the application and an Order 28 to that end is being issued in conjunction with this Decision.
COMMISSIONER
Appearances:
S White of O’Loughlins Lawyers, with permission for Ms Charles, the Applicant.
N John of KJK Legal, with permission, for SMP Network Pty Ltd, the Respondent.
Hearing details:
2021
December 15
Video Hearing.
Printed by authority of the Commonwealth Government Printer
<PR736730>
1 The 21 day time limit does not include the day of the dismissal itself, consistent with Acts Interpretation Act 1901 (Cth) s.36(1).
2 Section 394(3) of the Act.
3 Exhibit A1.
4 Exhibit A2.
5 Exhibit R1.
6 Oral submissions of Mr White on behalf of the Applicant – Transcript PN574.
7 Oral submissions of Mr John on behalf of SMP – transcript PN600.
8 Transcript PN192.
9 Exhibit A3.
10 Attachment SN2 to Exhibit R1
11 Taken from Attachment SN2 to Exhibit R1.
12 Attachment A to exhibit A1.
13 Including the evidence of Ms Charles – transcript PN192 and PN210 amongst other references.
14 Court Book pages 48 to 50.
15 Nulty v Blue Star Group Pty Ltd[2011] FWAFB 975 at [13].
16 Ibid.
17 Mooney v Mega Industries Pty Ltd[2021] FWCFB 2489 at [16].
18 Minister for Aboriginal Affairs v Pelco-Wallsend (1986) 162 CLR 24; Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [10] to [19] and [38].
19 Stogiannidis v Victorian Frozen Foods Distributors Pty Ltd[2018] FWCFB 901 at [39].
20 Attachment B to exhibit A1 – from 20 October 2021 to 30 November 2021 – in the form of a Centrelink medical certificate,
21 Transcript PN164.
22 See the approach in Brodie- Hanns v MTV Publishing Ltd (1995) 67 IR 298 at 299 to 300.
23 Kyvelos v Champion Socks Pty Ltd, AIRCFB Print T2421, 10 November 2000 at para. 14.
24 This may be relevant to whether it was unfair – s.387 of the Act.
25 This may have consequences for the unfair dismissal application – s.382 of the Act.
26 See Kornicki v Telstra-Network Group AIRC Print P3168, 22 July 1997.
27 See Perry v Rio Tinto Shipping Pty Ltd[2016] FWCFB 6963 for a discussion of this consideration.
28 PR737064
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5
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